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DUE PROCESS

12/23/2016

23 Comments

 
Once again, for those new to this blog site, at present there are 38 posts on the blog and each has its own set of comments. To read the comments you have to hit the word "Comments" at the beginning or end of the post. Somewhat confusing is that when you bring up the comments for a specific post it eliminates the other posts from the screen. To bring the other posts back up simply go back to the top of the page and click on Blog. Feel free to comment should you wish. No email address is required to make a comment so anonymity is strong. Due to some previous abuse of this right to anonymously comment, I have had to include an approval option, but I try to approve within 24 hours. To understand the development of the blog it is best to read it from the bottom post (Dr. Paul Kearney Case) up. One point of note here, to read the earliest posts you have to click on the word "<<Previous" at the very bottom of the posts available. Finally, for those just looking for a good summary of the Dr. Kearney case, simply scroll down to the previous 12/10/2016 post, and for social media developments on the Dr. Kearney situation I would encourage you to visit the excellent "Save Dr. Kearney Facebook Page": 
https://www.facebook.com/search/top/?q=save%20dr%20kearney


I want to wish everyone visiting this blog a Merry Christmas,
Happy Hanukkah or whatever you may find peace and joy in


Just when I thought I was through for the year, UK destroyed my serenity with another of their newsbreakers.  I am of course talking about the series of articles that started with Ms. Linda Blackford’s Herald Leader December 16th article entitled “At UK, about 40 percent of harassment investigations end in firing”:
http://www.kentucky.com/news/local/education/article121325588.html ,
This article, in part, discussed the sexual harassment case against Buck Ryan, an Associate Professor in the School of Journalism and Media. It was stated in this article that Mr. Ryan was disciplined for singing a modified version of the Beach Boys’ song “California Girls” at a meeting he attended in China.
 
The next day (December 17th) the Herald Leader published an OP-ED article entitled: “UK prof: Singing a Beach Boys’ tune got me punished for ‘sexual misconduct”, authored by Mr. Buck Ryan:
http://www.kentucky.com/opinion/op-ed/article121505232.html.
In this article Mr. Ryan states that when he went to investigate the complaints against him in an open records request he received a 2-page letter denying his request.  Furthermore, the dean who issued his punishment never talked to him about it but rather simply sent him a letter. Finally, when Mr. Ryan asked about his right to due process he was told:
“There is no constitutional right to represent the University of Kentucky abroad. Nor is there a constitutional right to teach a particular class. Accordingly, the University has no obligation to provide you with due process.”

This led to 2 articles on December 19th. The first was an article by Kristine Guerra in the Washington Post entitled: “A Kentucky professor says singing a Beach Boys song got him in trouble for sexual misconduct allegations”:
https://www.washingtonpost.com/news/grade-point/wp/2016/12/19/a-kentucky-professor-says-singing-a-beach-boys-song-got-him-in-trouble-for-sexual-misconduct-allegations/?utm_term=.785592f7159c.
This article was very similar to the one above concerning the allegations against Mr. Ryan. The significance is of course the fact that it is in the Washington Post. Meaning once again, as with the James Harwood sexual harassment case and the university suing the student newspaper, the university is going national, but for all the wrong reasons.


The second article was by Linda Blackford in the Herald Leader entitled:
“UK faculty committee holds special meeting as story on accused professor goes nationwide": http://www.kentucky.com/news/local/education/article121871548.html.
This article relates the meeting of a special council of the University Senate that met to discuss the way in which Mr. Ryan’s case was handled, and whether Mr. Ryan was afforded an adequate opportunity to contest the charges against him. A heavily redacted letter from the Title IX office was presented that says Mr. Ryan did this and that, to which Mr. Ryan claims the statements made were “outrageous” and “unsubstantiated”. He also stated that: “Never once has an administrator talked to me about any complaints”.


The above mentioned University Senate meeting and the newspaper articles reporting the university’s attitude towards due process and faculty rights, precipitated this December 19th Memorandum (see Memo) authored by the General Council Mr. Thro and his Associate Ms. Deaton. This document discusses an “Overview of Due Process in University Sexual Misconduct Disciplinary Proceedings”. I can only guess that they pulled this from the archives, because from what I can garner from reading this document, it has little to do with respect to the concerns being discussed in the University Senate meeting and these newspaper articles. Although for the sake of the Buck Ryan fiasco discussed above, they awkwardly stuck in references to the Crosby v. Capilouto case, what this Memorandum primarily discusses is due process, preponderance of evidence and the role an attorney plays with respect to resolving issues of sexual assault, stalking and dating violence as they might pertain to students being reprimanded for these crimes. I may be wrong, but I would have to believe this might differ substantially for university staff, faculty and tenured faculty.

On the other hand, if they are trying to use this as a template for how they view due process in general, Dr. Kearney’s lawyer I am sure found it interesting. The principles that:
“The individuals who investigate the allegation must not be involved in the decision to prosecute, the determination of guilt, or the appellate review. The individuals who determine whether to initiate disciplinary proceedings or whether to negotiate some sort of “plea bargain” must not be involved in the investigation or the adjudication of guilt”,
were totally disregarded in the Dr. Kearney matter, not to mention any other semblance of due process. When you put together a committee of people, many, if not all, have potential conflicts of interest, and you hold a trial and send forth a career death sentence in the absence of the accused or representation for the accused, the simple observation that they also used the investigators to determine guilt seems rather trivial. I think if you read through this you will find other statements that were disregarded in the Dr. Kearney vendetta, e.g. statements like, “Due process requires a presumption of innocence” and “the accused has a right to be present for all significant portions of the hearing”.

Then, in an attempt do to some damage control, Mr. Blanton, in the December 20th edition of the Herald Leader, authored an OP-ED piece entitled: “Professor’s story about sexual misconduct complaint off-key”:
http://www.kentucky.com/opinion/op-ed/article121979554.html . 
In it Mr. Blanton basically goes on the defensive and says we will release everything Mr. Ryan is requesting from his personnel file (redacted of course) if Mr. Ryan waives his personal privacy rights.  I can only interpret this statement from University of Kentucky representative Mr. Blanton to mean that it is University of Kentucky policy that anyone who wishes to obtain information from their confidential personnel file will be required to   agree to permit the university to release that information to the whole world. Scarry isn't it? Even with this, the bottom line here is of course, they can produce a redacted he/she said document, but Mr. Ryan would probably only get to face his accusers if he sues the university. I am sure Mr. Blanton and the university lawyers are well aware that an associate professor at UK cannot afford to sue the eight lawyers and endless taxpayer derived pot of money the university can throw at him. As we have seen in the Dr. Kearney case and the many other lawsuits the university currently has ongoing, the university lawyers heavily rely on this tactic of using the endless resources and taxpayer money to drag out litigation in hopes of draining the finances of their opponent. I can think of no other explanation for doing this other than the fear that they would most probably lose their case if it ever went to court.


And just when you thought it was over, on December 20th up pops another national recognition of our troubles at UKy. This one, a College Fix article written by Jorin Burkhart at DePaul University, is entitled: “University says no due process owed to professor who sang ‘sexual’ Beach Boys song":
http://www.thecollegefix.com/post/30449/.
Although this article is highly reiterative with respect to the other articles, it does contain the redacted letter that was tweeted to the College Fix by, one can only guess, Ms. Patty Bender, Assistant Vice President for Equal Opportunity. In it the charges against Mr. Ryan are laid out, as well as the sanctions. In reading this letter several things began to bother me. The first being the significant redactions. Although redactions are suppose to cover up information that could reveal the identities of targets of sexual predation/harassment, or perhaps even informants, they could also be used to cover up information that may not support the charges being made or may support perhaps a bias in the investigation. As we have seen in the Dr. Kearney case, the lawyers and administration at the university can be very manipulative with respect to the information they use in developing their case and justifying their sanctions.

Secondly, she/he/they (I can only guess faculty member(s) upset by Mr. Ryan’s trivialization of previous remarks concerning the song he sang) make the statement that she/he/they saw some girl walking “early one morning and she was wearing one of his UK shirts”. I guess one might ask; how did she/he/they even know for certain that it was Mr. Ryan’s UK shirt she was wearing? If this person is that intimate with respect to Mr. Ryan’s clothing you have to begin to question the objectivity of this witness. Furthermore, I can envision other explanations for someone borrowing a shirt other than the one implied here.
With the last statement in mind there is the observation that the contents of the letter would suggest that there were never any complaints filed by these students who she/he/they claim were inappropriately touched. One has to ask, was any attempt made to approach these purportedly inappropriately touched individuals and get their perspectives, or were the claims taken as gospel truths simply because these people said so? We have seen in the Dr. Kearney case the extreme measures that the university is willing to take against an individual based upon conviction by a jury, all of whom had potential conflicts of interest.
Finally, there is this mystery woman who claims that she has received “other complaints” from Shanghai University and Jilin University about Mr. Ryan’s behavior “unrelated to the ones being investigated here”. This is totally inappropriate in a letter of this nature. Either produce the evidence or do not include it. Hearsay is just that, hearsay, and its inclusion here suggests a totally biased individual adjudicating the case against Mr. Ryan.  


​The bottom line being, the university has made a documented claim that they are not required to provide faculty with due process. This is both an unfortunate and scary thought and/or attitude for an institution of higher learning. Furthermore, not only do they make this statement, but also, as we have seen in the Dr. Kearney case and now in the Mr. Ryan case, they actually live by this attitude. Sad to say, with the current administration and lawyers and their attitudes toward the 5th and 14th ammendments of our constitution and due process, it is kind of like you leave the United States once you start working at the University of Kentucky.
23 Comments
Insane Karpf Posse
12/23/2016 06:50:49 pm

Nice write up as usual. The only positive I can take away from the Crosby case is that this means that none of the highly paid faculty in the COM (eg Zwishenberger) have a property interest in their administrative positions and could therefore be removed from said positions. Which is a good thing.

Reply
Rosie
12/25/2016 03:22:23 pm

Merry Christmas Dan and the best to you and your blog in the upcoming year. Thanks also for being the voice we are not allowed to be.

Reply
Bill
12/25/2016 03:29:10 pm

Dr. Noonan, I just wanted to add my thanks and a Merry Christmas to you and your family.

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Dan Noonan
12/25/2016 03:31:41 pm

Thanks IKP, Rosie and Bill for your comments and Christmas wishes.

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Dan Noonan
12/27/2016 01:51:13 pm

Interesting, I think many here can sympathize with U of L:

“U of L pays David Dunn, ex-vice president of health affairs, $1.15 million to go away”

http://www.kentucky.com/news/local/education/article121056788.html

That’s about the same price we are paying.

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WEB
12/29/2016 11:12:39 am

Although I know different, I have to believe that some reading this blog post might come away with the impression that you were condoning sexual harassment.

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Dan Noonan
12/29/2016 06:10:39 pm

Thanks for your comment WEB. I truly hope no one reading this post thinks I condone sexual harassment. The title of the post is “Due Process”, and it is the potential lack of it in both this situation and Dr. Kearney’s situation that motivated me to post this material. Think about it, if the administration of the university are allowed to convict a faculty member of sexual harassment based upon something like the statements being made in this letter from Ms. Bender, without confirmation by the supposed target(s) of the sexual harassment and without providing the faculty member the opportunity to address the charges against him, then they could use this approach to get rid of any faculty member they so choose. All they would have to do is say in a highly redacted letter that they received several charges of sexual harassment, that they refuse to reveal the identity of the charge makers and that if you wish to fight it you will have to take us to court. Voila, it is either a protracted and expensive lawsuit, or you accept the punishment they so wish to mete out.

The Dr. Kearney situation is an even worse case scenario. Here is an individual whose behavior the administration has fully endorsed for over 25 years with outstanding performance evaluations, 29 teaching awards, promotions to full professor with tenure and they even placed him in charge of their highly touted Level I Trauma Center. Then they all of a sudden gather a group of 13 people (all of whom are being paid through a company that Dr. Kearney recently challenged the money management practices of) to convict and sentence Dr. Kearney initially to the gas chamber, but was eventually changed to basically life in prison. The trial was performed in his absence, in the absence of any representation on his behalf, and the clincher being that the premise for their guilty verdict was a history of bad behavior that the administration of the College and hospital obviously fully endorsed over the time period they were claiming the bad behavior occurred.

The bottom line being, due process was totally denied in the above scenarios, and the scary thought is that the university is stating through their actions and public statements that they do not have to provide their faculty with due process. Furthermore, if you have a General Council that is willing to threaten faculty and use his position of power to orchestrate the fulfillment of those threats, nobody is safe.

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Rosie
1/1/2017 07:28:44 am

I see where John Wilson wrote a brief editorial article in the Herald Leader:
http://www.kentucky.com/opinion/letters-to-the-editor/article123768844.html
It also appears that the Herald Leader, in 2017, might be requiring subscription for access to their online articles. Well for those who are not be able to access it, here it is:

Imperial, secretive UK

A recent article described the University of Kentucky’s practice of offering lucrative settlements and promises of silence if faculty members accused of harassment leave quietly. Such individuals can go elsewhere, leaving students at their new institutions at risk.

I have been a UK faculty member for 40 years. I believe this practice makes a mockery of the word transparency and puts other students at risk while keeping the facts at UK comfortably hidden.

Another article detailed punishment for a UK faculty member for unspecified acts while on a university trip to China. When the professor wanted the complete file released he was asked to waive any rights to sue the university. Few of us have the resources to sue a university with an unlimited legal budget. This allows the university to hide any actions it wishes by threatening faculty who question a disciplinary action with costly legal entanglements. This imperial attitude that the administration is above scrutiny from anyone even extends to lawful requests for information from the Kentucky attorney general.

All citizens should be concerned with the arrogant manner in which UK uses cries of “privacy” and legal maneuvers to shield the truth from public inspection.

JOHN WILSON

LEXINGTON

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Dan Noonan
1/1/2017 07:32:19 am

Thanks Rosie for your comment and the posting of this article. Hopefully 2017 will be a much more transparent year at the University of Kentucky, and "Happy New Year" to you and all that enter this blog.

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Ed
1/5/2017 12:16:04 pm

Not much going on here. I really can’t see why anyone would be at all surprised that few give a rat’s patoot that this state university’s administration cares very little about “due process”, considering 62.5% of the voters in this state endorsed a sexist amoral pervert and documented liar to be our next president.

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Dan Noonan
1/7/2017 06:02:00 am

Thanks for the comment Ed. It is early in the year and most of us are simply enjoying the quiet before the storm. Keep monitoring the blog.

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Char
1/9/2017 04:27:33 am

I think a simple solution to all of this might be to fire KMSF. I suspect there is no extended contract with KMSF, and although their performance has served the hospital adequately over the past 39 years, many questionable practices have surfaced with respect to this service. The secrecy and lack of transparency alone should be enough to justify this move. Therefore, the simple solution would be for the university/hospital to simply dissociate itself from KMSF.

Obviously the question arises, “who would we get to replace KMSF?” well one very practical solution would be to have the university establish its own hospital money management group, a UKMSF if you will. Considering that much of this business (e.g. recruiting, hiring, pay, benefits, auditing etc.) has in the past been handled by UK, I would think transition would not be much of a problem. This much more transparent group could have a board that consisted of similar individuals to that of KMSF should they wish to no longer work for KMSF, or if they wish to stay with KMSF, I feel certain we could find other replacements. It would also be nice to include a couple of non-physician university representatives, e.g. the provost and perhaps an elected university faculty member.

I am sure some may view this as some sort of impediment to progress, especially with respect to obtaining those gigantic hospital donations we have had in the past, as well as avoiding those nasty state procurement laws, but think of the money we might save in football and basketball season tickets, Keeneland box seats, Iroquois Hunt Club parties, rented jets, etc., etc. Furthermore, it would just be nice to actually be able to see what the administration is doing with this state university hospital revenue.

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Dan Noonan
1/9/2017 06:26:40 am

Thanks for your constructive suggestion Char. If memory serves me right, I think this solution to the KMSF controversy was mentioned in the comment section of one of the earlier posts. It sounds reasonable to me.

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Dan Noonan
1/9/2017 05:07:25 pm

So just for the record, and very timely with respect to the above conversation concerning KMSF, WKYT, on their 6:00pm news today, aired an interview with Dr. Hatemi concerning KMSF activities, and of course a university response from Jay Blanton.

http://www.wkyt.com/content/news/WKYT-Investigates-Former-UK-doctors-question-foundation-meant-to-support-their-own-410146245.html

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Da Illest
1/9/2017 07:06:37 pm

Just once I'd like someone to ask Blanton straight up if the KMSF is so clean as he says then why not hand over the open records requests immediately?

Very telling in my opinion.

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Dan Noonan
1/10/2017 03:13:19 am

Thanks for the comment Da Illest. I agree. Furthermore, Mr. Blanton can’t have it both ways, KMSF is either a company independent of the university or it is 600 doctors from the University of Kentucky. If it is essentially 600 doctors from the public University of Kentucky it is part of the University of Kentucky and subject to open records requests. Along these same lines, if it is 600 doctors from the University of Kentucky, why does the company deny open records requests from one of its 600? On the other hand, should the situation be that KMSF is essentially only a few of those 600, often working deals (and spending what is essentially University of Kentucky money) beyond the purview for which KMSF was established, then perhaps I see their need for secrecy and their willingness to fight the state’s Attorney General on this open records issue.

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Jay-Z(wish)
1/10/2017 08:52:24 am

Possibly the only true statement in Debeer's deposition was that most of the physician salaries are actually recovered through hospital (UKHC) billing, not KMSF. So why do we need KMSF at all?

Anyway, on a more constructive note, Gov. Bevin appointed three new UK BOT members, one is a healthcare professional (dentist) and another is a lawyer. None of these were around for the Kearney "process". Maybe it would be useful to reach out to these individuals?

http://www.kentucky.com/news/local/education/article95375157.html

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Dan Noonan
1/10/2017 02:35:34 pm

Thanks for the comment and information Jay. These appointments were made last summer and these Board members were included in the Summary post notification I sent to the BoT members in December. So if they bothered to read the post, they should be up on (at least from my perspectives) the Dr. Kearney case. As might be expected, none of these newbies have attempted to get involved in this hot topic. I somehow get the feeling that most of these BoT members (perhaps with the exception of the faculty representatives) are in it for the prestige and basketball tickets. Challenging the governance practices at this university is something most of these folks didn't sign on for and would avoid like the plague. This was made clear when they said nothing when President Capilouto defied their ruling on the Dr. Kearney matter and instituted his own set of restrictions on what he could and couldn't do.

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Jay-Z(wish)
1/10/2017 05:24:02 pm

The reason I was asking is that over on the save Kearney FB page the Kearney true believers are all excited because they think Governor Bevin is personally following the Kearney case and is preparing to strike down the BOT with great vengeance and furious anger or at least sack some of them for "dereliction of duty" (whatever that is). It seemed to me that if the Gov really is interested in the Kearney goings on one way that he might be staying informed would be through his appointees to the BOT? Maybe these people are really sleeper agents who report to the Governor?

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Dan Noonan
1/11/2017 09:55:48 am

Thanks again for your comment Jay. I have no incites into what the governor's plans are with respect to our BoT, but his history with the U of L BoT suggests he at least monitors what these state university BoTs are doing, and that he is not reluctant to step in when he feels he needs to. As we both know, the Dr. Kearney case is simply one of several controversial issues that have surfaced in the recent past with respect to the governing actions of our senior administrators at this university, especially in the areas of transparency and due process. Hopefully the governor is keeping abreast of these and weighing them in on any decisions he may be contemplating with respect to any changes he may wish to implement.

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Jay-Z(wish)
1/11/2017 11:51:21 am

Sure, but the F**k ups at UofL in general and in the UofL hospital in particular are way worse than anything that has happened at UK (yet). Probably the best hope for a gubernatorial intervention is to root for a massive UKHC financial meltdown. I am sure this is why Karpf "pre resigned" so that if a sh*t fan collision is imminent he can just pull the ejector seat lever and fly off to Jackson Hole or Beverly Hills...

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Winter is Coming
1/13/2017 02:55:15 am

The financial meltdown of UKHC is imminent and the repeal of Obamacare will be the catalyst. Look for the university to blame the repeal as the cause, but a decade of massive unchecked spending is to blame.

If tax payers had any idea of the kind of debt Karpf has created they would chase him to Jackson Hole with pitchforks.

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Dan Noonan
1/13/2017 05:40:25 pm

Thanks for the comments Jay and Winter. Below I have added another information update sent in by Jay.

"Bids are out for the firm to run the EVPHA search and I know the committee has met. I assume that anyone qualified to do the job would be able to look at the books and tell if the whole thing really is a house of cards. It will be interesting to see who applies and is interviewed (not that this will ever be made public). Also, I was over in the UKHC/EVPHA executive area earlier in the week and noticed that general counsel Thro and some of his legal minions now have their offices there, presumably so they can be closer to the source of all of the lawsuits."

Thanks for this update Jay.

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